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Traditionally, International Humanitarian Law and International Human Rights Law have been considered to be completely isolated from one another. As Jean Pictet put it, “humanitarian law is valid only in the case of armed conflict while human rights are essentially applicable in peacetime”(1975: 15). International Humanitarian Law (IHL) was believed to be solely applicable to times of warfare (today referred to as ‘armed conflict’), and International Human Rights Law (IHRL) exclusive to times of peace. This mutually exclusive dynamic between IHL and IHRL is derived from the lex-specialis – lex-generalis concept.
However, on September 21, 2008, the United Nations Human Rights Council adopted Resolution A/HRC/9/9 entitled “Protection of the human rights of civilians in armed conflict”. This resolution asserts that International Human Rights Law (IHRL) and International Humanitarian Law (IHL) are “complimentary and mutually enforcing” and that all human rights require equal protection, therefore international human rights law persists, contrary to traditional practice, in times of armed conflict.
It is this new perspective of complementarity and mutual enforcement that this paper will consider the relationship between IHL and IHRL in order to assess whether or not an adequate legal protection for civilians during times of armed conflict and civil unrest is being provided. First, an explanation of both bodies of law and their initial relationship followed by an explanation of the relationship between both bodies of law to the concept of civilian and the general provisions provided by each body of law. From this understanding of these relationships and assessment of when each body of law may be applicable will be made. Throughout these sections an attempt to uncover and isolate the ‘weaknesses’ of each body of law will be made. Finally, a discussion of the discovered ‘weaknesses’ and whether or not it can be strengthened by the other body of law; followed by an assessment of the adequacy of the ability for these two bodies of law to provide protection to civilians in such specific cases as previously stated.
According to the International Committee of the Red Cross IHL is “[..] a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict” (2004: 1). IHL accepts that war is inevitable, unlike Human Rights Law, which pushes for the belief in peace at all times. However, these rules seek to bring an element of humanity to an essentially barbaric act, striking a balance between military necessity and the prerogatives of humanity (Griffin & Cali, 2010: 236). In total, IHL is comprised of over 200 years of international law treaties; the core documents of which are: the Hague Regulations, which predominately regulate the use of weaponry and targeting during warfare; and the 4 Geneva Conventions along with their three Additional Protocols, which focus on the treatment of persons during an armed conflict.
International Human Rights Law (IHRL), on the other hand, is a body of international law which protects and promotes human rights (Clapham, 2007: 42-43). Human rights are the inherent entitlements to every person based on the fact that they are human. Like IHL, IHRL is comprised of treaty-based law, which is binding to states who have signed and ratified the treaty, and customary international law, which applies to all states, irregardless of the existence of a treaty. The core documents providing the fundamental aspects to which all other IHRL documents align are the International Covenant on Civil and Political Rights (ICCPR), the International Covenant for Economic, Social, and Political Rights (ICESPR), and the Universal Declaration of Human Rights (UDHR).
IHRL and IHL are closely related, as both endeavor to promote the human dignity of those under their jurisdiction. However, at the same time, they are quite distinct from one another, as both endeavor to regulate different relationships and are typically considered to be applicable in different contexts. As a general rule, IHRL regulates the relationship between an individual, or group of individuals, and the state. Though IHL is also concerned with regulating relationships, these relationships exist between parties to an armed conflict and non-parties to a conflict. Therefore, IHL concerns itself not only with the regulation of relationships between an individual and it’s ruling state, but also with the relationships between an individual and a foreign or enemy state.
A civilian, as defined in Chapter II, Article 50 in the 1977 Additional Protocol I to the Geneva Conventions, is an individual who is not a legal combatant. The same Protocol further asserts that, should the status of a person be in question, the “[...] person shall be considered a civilian”. According to the ICRC 1958 commentary on the 1949 Geneva Convention IV (GCIV) civilians who directly engage in a conflict are termed ‘unlawful’ or ‘unprivileged’ combatants. That being said, a civilian would fall into the persons considered under Article 3(1) of the GCIV, which states that those who take no active part in hostilities must be treated “humanely and without any adverse distinction”.
The fundamental rights afforded in IHL to civilians by the GCIV and Additional Protocol I are non-derogable, and seek to guarantee civilians freedom from violence to mental and physical well-being, collective punishments and reprisals, rape and enforced prostitution, slavery, pillage, denial of fair trial, threats to committing any of the previously stated acts (Article 3(1)(a-d)). Interestingly, IHRL encompasses the same list of core freedoms, but additional rights and freedoms.
Both bodies of law also, however, offer provisions for derogation, in some way, from the protections provided. For IHRL, these allowed derogations are found in the ICCPR and regional treaties, and apply in times of emergency, only. To help prevent the abuse of this caveat, each treaty lists a number of stipulations which must be considered before a state may legally derogate from it’s obligation to uphold a right, such as temporariness, severity of the emergency, proportionality, and consistency with other international law obligations.
Similarly, breaches of IHL which impinge on the rights and freedoms of a civilian are subject to conditions of proportionality. That is to say, if the amount of damage caused in a military action, even if it included some adverse affects to civilians, provided the military’s end-goal was worth significantly more than those affects felt by civilians (Additional Protocol I, Article 51(5)(b)), could be argued as legitimate. Though such breaches of IHL are not formally labeled as accepted derogations from any of the rights guaranteed to civilians, such situations do occur and have been ruled as such in tribunals and criminal courts; making an argument for an accepted variation of derogation.
Bodies In Action
In principle, due to the concept of lex-generalis in legal doctrine, IHRL applies both in times of peace as well as conflict. Because IHL is a subsection of International Law, it is, subsequently, susceptible to the same protocols and rules of application and development that every other piece of International Law is (Schindler, 2003: 172), including the doctrine of lex-specialis. That being understood, an understanding of exactly when IHL applies is necessary in order to assess the quality of the applicability of IHL to civilians. To be sure, Common Article 2 of the 1949 Geneva Conventions states that such provisions shall apply in all cases of war or armed conflict taking place within the territory of a High Contracting Party, between two or more signatories to the conventions, even if the state of war is not officially recognised by one of the participating parties. Additionally, the conventions are asserted to apply to all cases of partial or total occupation, even if the occupation movement was not met with armed resistance.
It is widely accepted in modern international law that IHL, as it has been ratified by nearly all states, applies to all states, regardless of whether or not they have actually signed on to the Conventions, as any physical location would be under the jurisdiction of IHL (Kleffner, 2012: 453). But what exactly is meant by ‘armed conflict’ and ‘occupation’?
Determining the exact definition of this triggering mechanism for IHL is quite problematic, as no piece of IHL legislation explicitly offers one. Furthermore, a distinction between conflicts of an international and a non-international nature must be made, as the perception of what would constitute an ‘armed conflict’ is partially affected by this.
International armed conflict (IAC), according to the ICRC and based on the language of Common Article 2, is a conflict between two states leading to an intervention by armed forces (Schindler, 2003: 166). In other words, a conflict between two recognised states which has escalated to the (perceived) necessity of engaging the legal military forces. This is most easily determined by the crossing of borders into the sovereign territory of a state, such as the war between North and South Korea in the 1950′s.
Non-international armed conflict (NIAC), according to Common Article 3 of the 1949 Geneva Conventions, is an armed conflict “not of an international character occurring within the territory of one of the High Contracting Parties”. The 1977 Additional Protocol II expands further to declare that IHL applies to all “armed conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces, or other organised armed groups which, under responsible command, exercise control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this protocol” (Article 1).
NIAC is much more difficult to assess, as tensions between a state and it’s citizens, which may manifest in brief outbursts of violence such as bombings or violent riots, can exist, without reaching the level of an armed conflict. In contemporary legal terms, a situation will be deemed an armed conflict if two variables can be adequately determined; intensity of the violence and the level of organisation of the parties; if either variable cannot be determined or fulfilled, then the situation is classified as a mere disturbance (Vite, 2009: 76). This ‘disturbance’, as termed by Vite, could also be referred to as ‘tension’ or civil unrest, and therefore considered outside the jurisdiction of IHL.
‘Occupation’, unlike the term ‘armed conflict’, is provided with a definition in Article 24 of the 1907 Hague Convention under IHL, which states that a territory is considered occupied when it is placed under the authority of an opposing army. Furthermore, asserts the Convention, the occupation extends only as far as the occupying authority has been established and can be exercised. However, this particular definition only applies in situations of IAC, according to Article 2 Common of the 1949 Geneva Conventions. Therefore, situations such as the one in Israel, where a state is occupying a territory which originally belonged to another party which is not recognised as a state (Palestine), IHL would not apply.
Though IHRL can be argued as applying at all times because of the lex-generalis nature of its language, Danio Campanelli interestingly points out that, in a system governed by intergovernmental rulings, IHRL norms cannot take precedence over a rule already governing a situation, such as IHL rules regarding treatment of civilians in armed conflict (2008: 656). In addition, the ICCPR states that IHRL may be derogated from in situations which are considered to be a threat to the life of the nation (Article 4(1)). According to Armstrong et al, situations threatening the stability of a nation can include, by legal doctrine, war and military occupation (2011: 169). Therefore, in times of war (which is now referred to as ‘armed conflict’) certain aspects of IHRL such as the right to liberty and the right to vote, may be temporarily suspended. However, fundamental principles as dictated in UDHR (i.e. the right to life) and the ICESPR, or other bilateral/multilateral agreements which do not include a derogation clause, are still guaranteed, even in times of conflict.
Luckily, IHL is immediately applicable to situations of armed conflict. Therefore, even if an argument against the applicability of IHRL in a situation of conflict concerning a civilian were to be made, IHL would still be there to assert some form of protection for a civilian, such as the right to a fair trial and the right to humane treatment, free from medical and scientific experimentation. In addition, though IHL endeavors to protect civilians without discrimination, groups such as the aged and sick, children, and women, all of whom are perceived as highly vulnerable to the adverse effects of warfare, are provided with additional protections under IHL. In these cases, IHL appears to go above and beyond the basic ‘blanket principles’ provided to civilians in order to try and avoid a deficit in certain areas of its application.
As stated previously, IHL only applies in times of armed conflict. But what of situations outside of armed conflict, such as those of civil unrest, or tensions such as the situation between the IRA of Ireland and Britain in the 1970′s? Such situations, though not meeting the ‘yardstick’ as discerned in the Tadic Case (Prosecutor, 1999), often subject civilians to conditions and treatment similar, if not nearly identical, to those found in situations of armed conflict. Similarly, cases of occupation which are not created during a time of international armed conflict, are also not subject to the rules of IHL, leaving the civilians inhabiting the occupied territory without the protections stipulated in the GCIV. As such situations fall outside of the legal jurisdiction of IHL, and therefore are not subject to a law under the doctrine of lex-specialis, then perhaps IHRL may be able to fill in the gap left by this loophole.
As situations of civil unrest, riots, and violent protests are not considered to be situations of armed conflict, but rather situations of tension involving a state and individuals or groups of individuals of that state, IHL is not applicable. In such a case, though, methods used by either party involved may be similar to those seen during armed conflict (use of domestic police or national guard as a security mechanism), indeed some which would even perhaps be considered illegal under IHL (firing of teargas weaponry into crowds of non-combatants or use of explosives on a subway to incite fear into the public). Regardless of the severity of the acts committed, IHL does not apply in these cases. However, as the key aspect of these situations is the fact that the relationship is between civilians and their ruling state, they certainly would be subject to the restrictions and obligations of IHRL. That is to say, the state would be obliged to ensure and uphold, if nothing else, the non-derogable principles of human rights (i.e. right to life, freedom from inhumane and bodily outrage) during such instances. Concerning situations of occupation which also do not fall under the jurisdiction of IHL, the applicability of such IHRL treaties as the ICCPR has been recognised by the United Nations Human Rights Committee. In such cases as these, the occupying force takes on the responsibilities of a ruling state.
International Human Rights Law is the body of international law concerned with promoting and regulating the obligation of the state to uphold the rights and freedoms of its individuals. IHRL applies at all times via lex-generalis. However, as per the legal doctrine of lex-specialis, it cannot take precedence over a more specialised law which is already active in a situation.
International Humanitarian Law is the body of law which regulates behaviours of parties only in situations of armed conflict, making it part of the lex-specialis legal doctrine. These situations of armed conflict may be between two or more states (IAC), a state and one or more non-state actors such as a militia (NIAC), or even between two or more non-state actors (also NIAC). IHL may apply to situations of military occupation, but does not apply to military occupation in situations outside of international armed conflict (as per Common Article 2 of the 1949 Geneva Conventions), and guarantees civilians protection from outrages to mental and physical well-being, reprisals and punishments of a collective nature, slavery, denial of a fair trial, enforced prostitution or rape, or threats pertaining to any there above (Article 3(1)(a-d)).
Due to the lex-specialis – lex-generalis dynamic between IHL and IHRL, a relationship of complementarity and enforcement appears to have developed over the years in an attempt to provide the most extensive protections for those not participating in hostilities. Unfortunately, as evidenced by the increase in the number of civilians adversely effected by armed conflict in the past 60 years, the legal adequacy of the protections provided to civilians does not seem to have much effect in the physical world. Perhaps, then, a less positivist approach should be taken when considering the efficacy of IHL and IHRL in protecting civilians in times of unrest and armed conflict.